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[Ward Farnsworth (guest-blogging), July 30, 2007 at 11:35am] Trackbacks
Don't Shoot Me, I'm Only the Piano Player.

Eugene has been kind enough to invite me to blog a bit about a book I've written called The Legal Analyst. In the coming days I'll write about some of the ideas in the book. Today I'll say something about the rationale for the project (and at the end of this entry I'll offer a historical comment about the legal implications of selling a piano to a house of ill fame. So there will be something for everyone.).

The book is a kind of user's manual for ideas about the law. The ideas aren't doctrinal categories like contract and tort. They're tools for analysis that cut across categories like contract and tort. A lot of the chapters involve economic principles, but many others don't; there's a good bit of cognitive psychology, political science, jurisprudence, etc. The result is meant to be useful to lots of people: law students, lawyers, scholars, and laymen with an interest in the legal system (perhaps not a bad description of the readership of this blog).

The style of teaching in the book somewhat resembles the approach of my chess website and books — lots of examples meant to build the reader's ability to recognize patterns. But since most people aren't as interested in the intersection between law and chess as I am, I won't linger on the point!

Let me instead pursue the theory behind the book with a question. How should law school be organized? Isn't it odd that the first-year curriculum is the same almost everyplace, and that it's structured as it is? A couple of schools have started to experiment with minor innovation, but there still isn't much of it. Here's what I might suggest: a year spent just on analytical methods, another year spent entirely on various forms of rhetoric, and then one year on substantive legal doctrines (some of which would also have been taught along the way during the other two years). Not that every school should do this, but shouldn't someplace do it? Perhaps you have other ideas of your own. I see no reason to assume that one size fits all. Maybe it's a stag hunt, which is an idea discussed in the book that I'll talk about later in the week. Or a case of path dependence.

I said a school might usefully spend the first year on analytical methods. That's the part of my suggestion that relates to the book. There are, in general, two sorts of things one learns at a law school. You learn lots of legal rules — principles that tell you whether a contract is valid, how to tell murder from manslaughter, etc. And you learn how to use tools for thinking about legal problems — ideas such as the prisoner's dilemma, or the differences between rules and standards, or the notion of a baseline problem, or the problem of hindsight bias, and so on. Those tools for thought are the more interesting and useful part of a legal education, and the greater share of the fun of it, at least if they're taught properly.

Law school courses could be organized around those tools rather than legal subjects, so that in the first year everyone would take a course on the prisoner's dilemma or on game theory, a little course on rules and standards, a course on cognitive psychology, and so forth, and in each of those classes one would learn, along the way, a bit about contract law, a bit about tort law, etc. But instead law school is carved up the other way around: by legal topics, not by tools. Maybe there are good reasons for teaching law this way, but a side effect is that most students never get that hang of the tools that ought to be the best payoff of the enterprise. They just hear about them in passing. Maybe any given idea gets mentioned by a teacher sometime, or maybe not; maybe it comes up again later, or maybe it doesn't.

Anyhow, whether or not it makes sense to carve up legal education by methods rather than substantive subjects, I do think there's at least a place for a book that does this. I hope so, at any rate, because that's what I've tried to write.

Another problem the book means to address has to do with the gigantic volume of legal scholarship churned out every year by law professors. The one percent of it that would be of most interest to a student or to a generalist lawyer or law professor — the portion that amounts to a helpful analytical tool, or to a charming illustration of the use of one — is not so easily found. I've tried to round up as much of that one percent as I can (I've left out a lot of it, of course), and to explain it as accessibly as possible.

In some cases I've enlisted the help of other professors who already had written outstanding explanations of the issues I wanted to cover. The chapter on slippery slopes, for example, is co-authored with Eugene, and really is nothing but an adaptation of his scholarly work on the subject. I'm very grateful to him and to my other co-authors for helping out, and hope that in return I may bring their ideas to some people who might not have heard about them otherwise.

Tomorrow I'll start talking about some of the ideas in the book, but enough about it for today. As long as I'm here, though, I'll venture a comment on an issue Eugene raised last week: tort and criminal liability for supplying someone with the means to commit a crime. Eugene didn't mention another interesting angle on the problem, namely the contractual side. A contract to help someone commit a crime is unenforceable. A very classic example is the old English case of Appleton v. Campbell, [1826] 2 C & P 347. It mustn't be paraphrased; only direct quotation will do:

Assumpsit for board and lodging. The defence was, that the defendant was an immodest woman, and used the lodging for the purposes of prostitution, to the knowledge of the plaintiff.

To substantiate this, another female, who lodged in the house, and who was called for the plaintiff, proved, on her cross-examination, that the defendant was in the habit of receiving male visitors, and that the plaintiff used sometimes to open the door for them; and that the plaintiff told her, that the defendant was an immodest woman.

Abbott, C.J. — If a person lets a lodging to a woman, to enable her to consort with the other sex, and for the purposes of prostitution, he cannot recover for the lodging so supplied. But if the defendant had her lodgings there, and received her visitors elsewhere, the plaintiff may recover, although she be a woman of the town, because persons of that description must have a place to lay their heads; but if this place was used for immoral purposes, the plaintiff cannot recover.

There is a distinctively American version of this problem, too, from when the world was young: someone sells a piano to a house of ill fame, and the proprietor of the establishment defaults on the obligation to pay for it. Is the contract enforceable? The case raises nice questions about the relationship between the piano playing in a brothel and the other activities carried out there. (Not long ago Robert Hughes said, "One gets tired of the role critics are supposed to have in this culture: It's like being the piano player in a whorehouse; you don't have any control over the action going on upstairs.")

This precise issue doesn't generate much litigation now, probably (I claim no expertise) because no modern brothel can be bothered to hire a piano player, or for that matter a player piano — unless, I suppose, it's going for retro charm, sort of like Camden Yards. But once upon a time there was a fun if minor division of authority on this little problem of pianos. See Hollenberg Music Co. v. Berry, 106 S.W. 1172 (Ark. 1907); Colburn v. Coburn, 211 S.W. 248 (Tex. Civ. App. 1919).

PatHMV (mail) (www):
Those tools for thought are the more interesting and useful part of a legal education, and the greater share of the fun of it.


I certainly agree with that sentiment, but my experience at State U. School of Law taught me that very few of my colleagues do. I know plenty of lawyers who, the day after graduation, were STILL convinced that all of our professors were "hiding the ball" from them. My school's first semester curriculum included a class on methods of legal thought and analysis. My favorite class, it was almost universally reviled and tended to be most students' lowest grade for the first year. I don't think many of them got much benefit out of it, sadly.

I haven't looked at the ABA standards for accreditation in awhile. How much do they control the first year curriculum?
7.30.2007 1:02pm
mrshl (www):
I had a 1L elective called Analytical Methods, in which we used a casebook by the same name.

It was a lot of law and econ with a little game theory (including the prisoner's dilemma), statistical analysis, and financial literacy thrown in. Probably the most useful class I had in law school. Definitely the most enjoyable. As you suggest, the class pulled in elements from tort and criminal law and other fields, but these were illustrative rather than substantive discussions. The focus was on the tools.

As PatHMV indicates, this was not the most popular class, but it should have been required. I'm not so sure a curriculum needs to be entirely re-designed to accommodate this kind of instruction, but using 3 hours per semester for an MBA-style class like the one I had isn't a bad idea. We had to turn in 6 or 7 written assignments, and the other half of our grade came from a comprehensive exam. It was a welcome change of pace from the all-eggs-in-one-basket final.
7.30.2007 1:41pm
Cold Warrior:
Prof. Farnsworth --

I already like the book. I checked out the website and skimmed through the sample chapters. You cover the topics thoroughly, but in a pleasant, conversational, non-technical style. I'm sure this will be one of the books I recommend to prospective law students out there (and I do work with several college student interns every year who have some level of interest in law school).

I also like the example in your first post. For those wondering what the house of ill repute piano player sounded like, check out Robert Shaw, "The Ma Grinder: Texas Barrelhouse Piano" on Arhoolie Records. It's the soundtrack to this post ...
7.30.2007 3:37pm
Dan Simon (mail) (www):
This sounds a lot like the philosophical underpinnings of the so-called "new math" approach to mathematics instruction. "New math" was based on the idea that traditional mathematics education focused too heavily on specific methods and techniques, and at its worst degenerated into rote memorization and mechanical repetition of cookbook methods. Instead, "new math" advocates emphasized various underlying mathematical concepts that applied across topics, and recast old math-instruction cliches as higher-level, more general principles that they hoped would instill real mathematical understanding. Mathematics academics, in particular, hailed the new approach as "real math", unlike the dumbed-down drill-and-kill approach that preceded it.

As it turns out, of course, learning general mathematical concepts and applying them to specific cases is even more difficult than generalizing the specific cases to broader concepts. Hence, while the most talented "new math" students were able to grasp at least some of the abstract concepts they were taught, they never thoroughly learned any of the specific methods that form mathematics' "basics". Worse, less talented students, asked to grapple with deep mathematical ideas before learning the basics, ended up learning neither the abstract concepts nor the specific methods.

It seems to be a common error among academics who have plowed a field so deeply that they've found a few kernels of profound wisdom in it, that those kernels alone, properly imparted to students, will allow them to skip the years of deep study and arrive directly at their own level of understanding of the field. In fact, those kernels are useless unless planted in a similarly deeply-plowed field. Sowed casually onto fallow dirt, they simply blow away.
7.30.2007 3:39pm
James Lindgren (mail):
About a decade ago, your colleague Andrew Kull had a great article in a Chicago Kent symposium on the enforceability after the Civil War of debts based on slave sale contracts.

Jim Lindgren
7.30.2007 3:47pm
Robert West (mail) (www):
And you learn how to use tools for thinking about legal problems — ideas such as the prisoner's dilemma, or the differences between rules and standards, or the notion of a baseline problem, or the problem of hindsight bias, and so on

It seems to me that the tools listed in this paragraph all ought to be a standard part of university level education; I find it puzzling that they aren't.
7.30.2007 3:56pm
Andrew Janssen (mail):

It seems to me that the tools listed in this paragraph all ought to be a standard part of university level education; I find it puzzling that they aren't.


I think part of the problem is that what high school teachers think their students should know by the time they graduate is often wildly at variance with what college professors expect their students to know on the first day of class. This is especially true when you look at the emphasis on rote memorization vs. critical thinking.

Half the problem is that the schools have to teach to standardized tests which really have little relevance to what you need to know to be a successful college student. The other half is that most school districts are controlled by boards whose members probably aren't that good at critical thinking themselves and have to answer to parents who for the most part aren't interested in having their children think critically and challenge authority.
7.30.2007 4:30pm
theobromophile (www):

Here's what I might suggest: a year spent just on analytical methods, another year spent entirely on various forms of rhetoric, and then one year on substantive legal doctrines (some of which would also have been taught along the way during the other two years).

Why not do that in reverse order? It seems as if you should know what the rules are before you can ask whether or not they are right, or even how legal scholars arrived at them.


Maybe there are good reasons for teaching law this way, but a side effect is that most students never get that hang of the tools that ought to be the best payoff of the enterprise.

Best payoff? That depends on the purpose of law school. Most law students will not become academics, judges, or even clerks. Legal philosophy may be interesting, but a full year of it would detract from substantive legal doctrine (which is necessary to pass the bar) and trade skills (which are helpful in practice).


Isn't it odd that the first-year curriculum is the same almost everyplace, and that it's structured as it is?

It is not unlike engineering school, medical school, or business school - i.e. any professional school. That, of course, does not mean that the current system is the best or most effectual one.
7.30.2007 4:32pm
CJColucci:
Any relation to the late E. Allan Farnsworth?
7.30.2007 4:34pm
Waldensian (mail):
Why are guest blogger-entries always so much longer than regular-blogger entries?
7.30.2007 5:27pm
Dave N (mail):
Why are guest blogger-entries always so much longer than regular-blogger entries?

I suspect it all has to do with the fact that guest bloggers have to introduce themselves and their concepts. With respect to the regular conspirators, we all generally know where EV or OK or DB or JA are coming from. However, I confess that isn't always true with Sasha Volokh or Ilya Somin.

Besides, if you were invited to guest blog on the VC, wouldn't you want to bloviate too? :-)
7.30.2007 6:15pm
David Sucher (mail) (www):
Fascinating question.

A good chunk of law school should be organized around the concepts of "intent" and "manifestation."

These two questions must be answered in every area of law of which I am aware. Criminal law obviously but then also contract and tort and land use. The lawyer and/or judge is always trying to figure out what the parties intended to do and what they actually did. The emphasis changes depending on the circumstance but you always come back to trying to figure out what the parties thought they were doing and then what they actually manifested.

Whole areas such as evidence exist to systemize the raw data on which both intent and manifestation are proven. Competency to enter into a contract sets base-lines for when someone is allowed legally "intend." It goes on and on.

"Intent" and "manifestation" is what I saw in law school.
7.30.2007 6:37pm
LM (mail):

[...] probably (I claim no expertise) because no modern brothel can be bothered to hire a piano player [...]

I wouldn't bet on it. I played piano in a brothel outside Boston in the early 1980s. There was nothing exceptional about the place to suggest that others like it weren't operating then or wouldn't be now.

That said, the legal issue in question never arose because the (electric) piano was always provided by the musician, not the establishment.
7.30.2007 7:41pm
Hattio (mail):
Did anybody else find that the law professor they had who was best at teaching analytical methods was also the best at teaching their subject matter...and that tehy taught analytical methods through teaching substantive law? For me, it was my contracts professor, and I still find myself going back to both substantive law and analytical methods I learned in his class, whereas in most other areas I find myself going back to times I researched the same issue. Though, I guess the fact that I really never do contracts may have something to do with it.
BTW, my best professor was Professor Leslie, Chicago-Kent Contracts Professor.
7.30.2007 9:01pm
Hattio (mail):
LM,
That's the best "gigging" story I've heard in a while.
7.30.2007 9:02pm
David Sucher (mail) (www):
btw, Professor, I just took a look at the TOC of your book and I see that you have another absolutely terrific organizing theme:"Presumptions."

I remember reading an article -- and probably the most important one I ever read in law school -- titled (something like) "Burdens, Presumptions and the Way Judges Use Them." Anyway, it was a powerful piece which gave me a very useful structure.

It was written in the early 80s, I think.
7.30.2007 9:21pm
Waldensian (mail):

Besides, if you were invited to guest blog on the VC, wouldn't you want to bloviate too? :-)

Oh heck yeah. I'm bloviating already, just in the comments!!
7.30.2007 11:05pm
Tony Tutins (mail):
This book subverts the dominant law teaching paradigm, because it integrates different aspects of the law. The case method requires the student to understand how each case fits together with every other case to provide a map of the law in each area. To do otherwise is considered "spoonfeeding" by the profs. Going further to integrate what one knows about each subject into a cohesive map of "the law" is something that may never happen, or it may happen during bar review (you can "waive the tort and sue in assumpsit" -- cool!). There are no capstone classes in law school that I'm aware of, anyway. So this book definitely seems to fill a void in legal education.
Also, this might be a good subject for a pre-law class, or a summer class for 0Ls. One of the adjustments I had to make in law school was understanding that one could be analytical without being mathematical. Another was accepting that words I had thought of as synonyms had distinct and separate meanings, and vice versa (murder is a homicide with malice aforethought. but, the malice required for murder is not the same malice as the one for defamation, which malice is akin to the scienter required for other intentional torts.)
8.1.2007 6:09am